Pellumb Buci v The Secretary of State for the Home Department

The term partner in Part 5A is not governed by the definition in GEN.1.2 of Appendix FM. A person within that definition will generally be a partner, but otherwise the tribunal must make a broad evaluative assessment of whether there is a genuine emotional commitment akin to that between spouses or civil partners. Cohabitation is not essential.

The decisive question under section 117C(5) remains whether deportation would be unduly harsh for the partner. If the relationship is not categorised as a partnership, its substance must nevertheless be considered under section 117C(6). A tribunal should not draw an unduly bright line between those provisions.

The appellant, an Albanian national, appealed against the dismissal by the First-tier Tribunal of his human-rights appeal against a deportation order. He had received a sentence of three years’ imprisonment for conspiracy to supply Class A drugs.

He relied, among other matters, on his relationship with B, a British citizen. The First-tier Tribunal found that B was not his partner for the purposes of Part 5A and that there were no very compelling circumstances preventing deportation. The central issue was the meaning of partner in Part 5A of the Nationality, Immigration and Asylum Act 2002, and whether the First-tier Tribunal’s approach disclosed a material error of law.

1. Appeal dismissed. The First-tier Tribunal had erred by treating the definition of partner in GEN.1.2 of Appendix FM as determinative. The error was not material because, on its findings concerning the actual relationship, B remaining in the United Kingdom without the appellant would not suffer unduly harsh consequences.

2. Part 5A of the Nationality, Immigration and Asylum Act 2002 contains no definition of partner. A definition in the Immigration Rules cannot dictate the meaning of an expression in primary legislation. GEN.1.2 is confined to the Appendix, although a person satisfying it should generally be treated as a partner for Part 5A purposes.

3. Outside GEN.1.2, the tribunal must make a broad evaluative assessment. A partner is a person to whom the foreign criminal has a genuine emotional commitment of the same basic kind as that found between spouses and civil partners. Present cohabitation is not indispensable. A friendship, however strong, is insufficient; nor is a young person’s boyfriend or girlfriend necessarily a partner.

4. For Exception 2 in section 117C(5), the nature and strength of the relationship inform whether deportation would be unduly harsh. It must be unduly harsh both for the partner to leave the United Kingdom and for the partner to remain without the foreign criminal.

5. If the other person is not a partner, the tribunal must still assess the effect of deportation under section 117C(6), consistently with NA (Pakistan) v Secretary of State for the Home Department and Others [2016] EWCA Civ 662. The relationship’s substance must be examined collectively with all other Article 8 factors. In an appropriate case, it is erroneous to impose a bright division between sections 117C(5) and 117C(6).

6. On the evidence, B was the appellant’s partner, albeit by a narrow margin. The relationship was comparatively early and there was no evidence that the distress caused by separation would be enduring or sufficiently severe. Deportation was therefore not disproportionate.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal, holding that any error in the First-tier Tribunal’s interpretation of partner was immaterial.
• First-tier Tribunal: dismissed the appellant’s appeal against refusal of his human-rights claim following a deportation order on 24 July 2019.